Last of 3 ‘felony murder’ convicts files his appeal

The third appeal has been filed in connection with a February 2009 shootout in New Marshfield that left a man dead, and resulted in the conviction of three men for "felony murder" and aggravated robbery.

An attorney for third convict Abdifatah Abdi, 17, filed an appeal Aug. 23 with Ohio's 4^th District Court of Appeals. In the brief, attorney Russell S. Bensing argued that Athens County Common Pleas Judge Michael Ward made nine legal errors in Abdi's trial.

These include allowing Abdi to be convicted on both felony murder and aggravated robbery, rather than merging the two counts; and failing to move the trial to another county, despite heavy local publicity.

Athens County assistant prosecutor Keller Blackburn said Friday that some of the issues raised in Abdi's appeal are similar to those raised in an earlier appeal by one of his accomplices, Mohat Osman, who filed a brief in early July.

Both men argue that the trial court should have merged the counts of aggravated robbery and "felony murder," because the first is a lesser-included offense of the second.

"I think a lot of the issues are the same as those that were filed in Osman, but I believe the trial court acted appropriately," Blackburn said.

Abdi and Osman, from Columbus, and Phillip Dionte Boler, from New Marshfield, were involved in a drug-related shootout at the New Marshfield residence of Billy Osbourne, Jr., during which a non-combatant, Donnie Putnam of Meigs County, was killed in the crossfire.

Prosecutors admitted that none of the three defendants may have fired the fatal bullet, and that all three couldn't have. However, they told jurors in each trial that for legal purposes, this didn't matter each of the three men took part in the aggravated robbery that was the "proximate cause" of Putnam's death, which made each of them guilty of "felony murder" under Ohio law whether or not he shot Putnam.

All were convicted and sentenced to 28 years to life in prison. The 4^th District Court has denied Boler's appeal, and Osman's is still pending.

Abdi's appeal brief relies, among other case law, on the same Ohio Supreme Court ruling in State v. Williams that Osman cited in his appeal. Williams was decided in January 2010, after the three were convicted.

Bensing, calling the facts in the Williams case "closely analogous" to Abdi's, noted that in Williams, the defendant "had been convicted of both attempted felony murder and felonious assault, and the court held that he could not be convicted of both, since the commission of the attempted murder would always result in the commission of the predicate offense." The predicate offense is the offense whose commission gives rise to the "felony murder" charge.

Based on Williams and other case law, Bensing argued, in deciding whether to merge the felony murder count with its predicate, a judge should use a "pragmatic" approach, of "deciding whether one offense could be committed without committing the other." If a defendant can't commit one without the other, the counts should be merged, Bensing argued.

He said judges should also consider the "societal interests" that legislators wanted to serve with the felony murder law.

In Abdi's case, Bensing maintained, it's obvious that aggravated robbery and felony murder should have been merged into a single count.

When Ohio legislators passed the felony murder law, the attorney wrote, their intent was to impose a "substantial penalty" for a violent felony, but a "much harsher penalty" if commission of that felony resulted in a death.

As shown in a number of appellate decisions, he added, commission of felony murder "invariably requires a commission of the predicate offense." By definition, he suggested, a defendant can't kill someone in the course of committing an aggravated robbery unless he first commits said robbery.

In Abdi's case, Bensing contended, the aggravated robbery charge was a lesser-included offense of the felony murder charge, and carried a lesser penalty. Therefore, under Ohio law Abdi "cannot be convicted of both, and (his) conviction on the (robbery charge) must be vacated."

Blackburn said he believes the question of whether the felony murder charge and its predicate offense should be merged must be decided on a case-by-case basis, though Bensing seems to maintain that a defendant can never be convicted on each count separately.

"I think that's what they're trying to argue," Blackburn said. In some cases, he acknowledged, the two offenses are allied for example, when someone commits attempted felony murder by committing felonious assault but not in every instance.

In Abdi's case, he said, the aggravated robbery (pushing into Osborne's trailer) and the felony murder (the shooting of Putnam that resulted from the home invasion) are arguably distinct crimes, with separate victims, Osborne and Putnam.

"I think the issue here is if it were all one event, that's something," he said. "But here you have different victims."

Bensing's second assignment of error suggests that Ward should not have denied Abdi a change of venue, because in a small community like Athens County, publicity surrounding the shootout and subsequent trials was likely to influence the jurors.

The extent of the media coverage "was reflected in the responses of numerous prospective jurors; as one acknowledged, the killing 'was a big deal' in the area," Bensing wrote. In the initial round of voir dire jury questioning, he added, of 43 prospective jurors, only six said they had not heard about the case. Worse, many jurors also indicated they knew something about the convictions of Osman and Boler, who had gone to trial before Abdi, he noted.

The problem, Bensing wrote, "is not that the jurors knew about the crime; it is that they knew that the other two people accused of it had been found guilty." And if any jurors forgot that fact, he added, "they were reminded when the state called those two people (as witnesses) and had them invoke the 5^th Amendment before the jury."

(This calling of Boler and Osman as witnesses, and having them invoke their right not to incriminate themselves, is the basis of another assignment of error.)

Given the amount of effort it took to seat a jury, Blackburn said, "I think it's obvious that something like that was bound to come up" on appeal. However, he noted, jurors did say they could set aside anything they had heard about the case in making their decision, and the defense did not use up all its peremptory challenges, which allow it to dismiss jurors without stating a reason.

Bensing also argued in his brief that the court should have suppressed Abdi's statements made under police questioning, based on factors including his age (16 at the time), the absence of his parents during the interrogation and the fact that he had gone without sleep for more than 24 hours when he made the statements.

He also maintained that the state was wrongly allowed to introduce testimony that suggested Abdi and the others had talked about plans to rob someone other than Osborne; that the evidence at trial was insufficient to show that Abdi's aggravated robbery was the "proximate cause" of Putnam's death; that Ward should not have denied Abdi's request to disclose grand jury testimony at trial; and that the judge did not look closely enough at Abdi's "individual characteristics" when he sentenced him, but gave the 16-year-old Abdi the same prison term as Boler, a 28-year-old, previously convicted felon.